Carter v. Hanrath

Decision Date07 November 1994
Docket NumberNo. 930554-CA,930554-CA
Citation885 P.2d 801
PartiesRoyden V. CARTER, Plaintiff and Appellee, v. Shirley HANRATH; Magdalene Stevens; Randy Carter; and O.B. Carter, Defendants and Appellant.
CourtUtah Court of Appeals

Frederick N. Green and Julie V. Lund, Salt Lake City, for appellant.

Brant H. Wall and Cory R. Wall, Salt Lake City, for appellee.




Defendant Shirley Hanrath appeals the trial court's decision awarding a disputed area of land to an adjoining land owner, plaintiff Royden V. Carter, based on the legal doctrine of boundary by acquiescence. We affirm.


This case concerns a dispute over ownership of a portion of land situated between two parcels about eighteen miles northwest of Duchesne, Utah. The 160-acre northern parcel was purchased by Barbara Shrader (Shrader) in 1961. About 80 percent of the parcel is located on a plateau above and to the north of the Duchesne River, while about 20 percent is at the base of the cliff and apparently "landlocked," inaccessible from the portion sitting atop the plateau. Nonetheless, Shrader testified that she always believed she owned the portion below the plateau although she had visited the disputed portion only once in the mid-1970s by accessing it from the south.

Royden V. Carter and his brother, O.B. Carter, purchased the parcel south of the Shrader land in 1964 from Pete F. Abplanalp, who had owned the property for thirty years. The Carters did not have the property surveyed, but instead made the purchase based on representations from Abplanalp and a visual inspection, which disclosed the parcel to be essentially rectangular, bounded by fences on the east and west and by a state highway on the south. The Carters were told the northern boundary was marked by "ledges" or "cliffs," which rise perpendicularly from their land to form a natural barrier. In 1969, O.B. Carter quitclaimed his interest in the property to his brother, Royden Carter (Carter).

The dispute began when Shrader was negotiating to sell her parcel to defendant, Shirley Hanrath (Hanrath). Before purchasing the land, Hanrath ordered a survey which disclosed that Carter was occupying land below the cliffs and within the surveyed boundaries of the Shrader parcel. Nonetheless, Hanrath purchased the Shrader property on August 23, 1986.

When it became clear Hanrath intended to assert ownership of the disputed area at the base of the cliffs, Carter filed suit in September 1989, seeking to quiet title in the land below the cliffs. A bench trial was held and, on November 30, 1992, the trial court issued a memorandum decision, quieting title to the disputed portion in Carter on the basis of boundary by acquiescence. In its findings of fact issued March 23, 1993, the trial court found that the east and west boundaries to the Carter parcel were marked by fences that extended northward from the state highway to the cliffs. The trial court further found that the fences actually attached to the cliffs, thus forming a roughly rectangular parcel. The trial court also found that Carter or his predecessors in interest had occupied the land since 1920, and that Carter or his predecessors had constructed a barn and other structures on the disputed area for use in farming and grazing. Thus, the trial court determined that Carter's occupation and use of the land would have been apparent to Shrader if she had visually inspected the property before purchasing it.

Based on those findings of fact, the trial court held Shrader's "indolence" in failing to inspect the property and asserting ownership constituted acquiescence to the boundary. Accordingly, the trial court found that when Shrader sold the parcel to Hanrath, she could convey only the land within the modified boundaries. Hanrath appeals.


Defendant raises essentially two issues on appeal:

(1) Did the trial court err in finding sufficient evidence of occupation of the disputed area to justify awarding the land to Carter based on boundary by acquiescence?

(2) Did the trial court err in imputing acquiescence to Shrader who, as a non-resident landowner, was unaware of Carter's occupation of the land?


" '[I]n equity cases appeal may be had on the facts as well as the law.' " Englert v. Zane, 848 P.2d 165, 168 (Utah App.1993) (quoting Parks Enters., Inc. v. New Century Realty, Inc., 652 P.2d 918, 920 (Utah 1982)). Findings of fact may be reversed only if clearly erroneous. Utah R.Civ.P. 52(a); Reid v. Mutual of Omaha Ins. Co., 776 P.2d 896, 899 (Utah 1989); Englert, 848 P.2d at 168. A finding is clearly erroneous if it is "against the great weight of evidence or if the court is otherwise definitely and firmly convinced that a mistake has been made." Bountiful v. Riley, 784 P.2d 1174, 1175 (Utah 1989). The appeals court considers the trial court's opportunity " 'to judge the credibility of the witnesses.' " Reid, 776 P.2d at 899 (quoting Utah R.Civ.P. 52(a)); Grayson Roper Ltd. v. Finlinson, 782 P.2d 467, 470 (Utah 1989). By contrast, the appeals court reviews the trial court's legal conclusions for correctness, granting no particular deference. Bellon v. Malnar, 808 P.2d 1089, 1092 (Utah 1991); Grayson Roper Ltd., 782 P.2d at 470.

Boundary by Acquiescence

The trial court held that the disputed portion of land should be quieted in Carter under the doctrine of boundary by acquiescence. Under this doctrine, property rights are determined based on actual possession of land. Olsen v. Park Daughters Inv. Co., 29 Utah 2d 421, 511 P.2d 145, 147 (1973). The elements of boundary by acquiescence are: (1) occupation up to a visible line marked by monuments, fences or buildings; (2) mutual acquiescence to the line as a boundary; (3) for a long period of time, generally not less than 20 years; (4) by adjoining landowners. Staker v. Ainsworth, 785 P.2d 417, 420 (Utah 1990); 1 Englert v. Zane, 848 P.2d 165, 168 (Utah App.1993). Once each element is established, the party seeking title by acquiescence is entitled to a presumption of ownership. Englert, 848 P.2d at 169; Fuoco v. Williams, 18 Utah 2d 282, 421 P.2d 944, 946 (1966).

Hanrath concedes the third and fourth elements--that Carter is an adjoining landowner who has lived on the property for more than 20 years. Hanrath, however, argues that Carter cannot meet the first two requirements--occupation to a visible line and mutual acquiescence. We consider each of these arguments in turn.

I. Occupation

To establish the element of occupation to a visible line, a party must first prove "normal and appropriate" use of the disputed parcel. Englert v. Zane, 848 P.2d 165, 170 (Utah App.1993) (trial court did not abuse its discretion in finding that gardening, recreation and relaxation constitutes occupation); see also Brown v. Milliner, 120 Utah 16, 232 P.2d 202, 207 (Utah 1951) (pasturing was the land's "only practical use"); Staker v. Ainsworth, 785 P.2d at 420 (occupation established through building and occupying houses, farming, irrigating and keeping livestock upon the disputed area). Secondly, a party must prove the occupation extended to a visible line, and the line must be "open to observation" and "definite, certain and not speculative." Englert, 848 P.2d at 169 (quoting Fuoco v. Williams, 18 Utah 2d 282, 421 P.2d 944, 946 (1966)).

The trial court found that Carter and his predecessors in interest had, since 1920, occupied the disputed parcel by raising livestock, cultivating and harvesting crops, and by maintaining and using fences, a barn and a stock yard for hay. The trial transcript provides ample support for this finding. Carter testified that the disputed land was used for growing hay, pasturing animals and calving. Neighbors testified that this was basically the way the land had been used for many years. Weldon Brown, a neighbor whose uncle, Pete Abplanalp, sold the property to Carter, testified that he (Brown) helped his uncle grow crops on the disputed portion more than 45 years ago. He also recalled a barn and a feed yard located in the disputed portion. Delbert Broadhead, an 82-year-old Duchesne County resident who owns the land east of Carter, also testified that the two previous owners of Carter's land used it for farming and grazing over a period of more than 60 years. This testimony was essentially uncontroverted; even Shrader admitted seeing cattle grazing on the disputed parcel during her brief "walk through" in the mid-1970s.

The trial court also found that the fences marking the east and west boundaries to the Carter parcel extended north from the state highway to the cliffs on the north. In fact, the trial court found that the fences attached to the first tier of the cliffs and that the cliffs were "natural monuments and barriers." Once again, the trial transcript provides a more than adequate basis for these findings. Carter testified that the fences extended from the road to the cliffs when he purchased the property, and that portions of the fences crossing the river were repaired each spring after high water washed them out. Carter also testified that the cliffs formed a natural barrier to contain cattle, and that he always regarded the cliffs as the boundary to his property. 2 Broadhead testified that the fencelines extending from the highway to the cliffs had been there as long as he could remember. He also testified that he recalled mending the portions of the fences that extended across the river after they washed out each spring from heavy runoff. Additionally, Brown testified that the fences had "always been there."

It is clear that Carter met the element of occupation up to a visible line. The use of the disputed land for farming and grazing is normal and appropriate. Moreover, the fences and cliffs constitute a visible line around Carter's property that is "open to observation ... definite, certain and not speculative." Fuoco, 421 P.2d at 946.

II. Acquiesc...

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  • James v. Griffin
    • United States
    • North Dakota Supreme Court
    • May 22, 2001
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